Ordinance challenged in high court

Published October 25, 2013
After hearing the preliminary arguments, Justice Riaz Ahmed Khan of the IHC on Thursday referred the matter to Chief Justice Mohammad Anwar Khan Kasi as the petitioner had requested for the constitution of a larger bench to hear the petition.   — File Photo
After hearing the preliminary arguments, Justice Riaz Ahmed Khan of the IHC on Thursday referred the matter to Chief Justice Mohammad Anwar Khan Kasi as the petitioner had requested for the constitution of a larger bench to hear the petition. — File Photo

ISLAMABAD: A lawyer has challenged the newly-promulgated ‘Protection of Pakistan Ordinance’ in the Islamabad High Court (IHC), saying some of its sections are against the fundamental rights of the citizens as enshrined in the constitution.

After hearing the preliminary arguments, Justice Riaz Ahmed Khan of the IHC on Thursday referred the matter to Chief Justice Mohammad Anwar Khan Kasi as the petitioner had requested for the constitution of a larger bench to hear the petition.

Saleemullah Khan Advocate, who is also a retired inspector general of the police (IGP), in his petition requested the court to strike down the ordinance. Criticising section 3 (2) (a) of the ordinance, he said it was tantamount to giving ‘license to kill’ to the law enforcement agencies.

Under the section, an officer of the police, armed forces and civilian armed forces may “open fire or order the firing upon any person or persons against whom he is authoritised to use force”.

And such an officer may also enter and search, without warrants, any premises to make an arrest and can “arrest without warrants any person who has committed a scheduled offence”.

According to section 5 (5), any person may be declared an ‘enemy alien’ if he fails to prove his identity and “shall be presumed to have joined waging war or insurrection against Pakistan”.

Likewise, under section 6, an unidentified person may also be detained.

This section is related to ‘preventive detention’ under which the government may, by an order in writing issued by the secretary ministry of interior or any officer not below the rank of BPS-21 specifically designated in this behalf, authorise preventive detention of a person for a period not exceeding 90 days”.

According to Advocate Khan, officials of the district management group (DMG) would be accommodated on judicial posts as under section 8 (5) the government may appoint any “officer of not less than BPS-18 of the Pakistan administrative service or the provincial management service as a special judicial magistrate” in consultation with the chief justice of the high court concerned.

He added that section 9 of the ordinance related to the transfer of custody, inquiry, investigation and trial anywhere in Pakistan.

The lawyer contended that the transfer of a case falls under the domain of high courts and the government cannot be allowed to assume the powers of the high courts.

He said under section 12 of the ordinance, the government shall take appropriate measures to provide adequate security to the prosecution witnesses, investigating officers, prosecutors, special judicial magistrates and judges of the special courts and for this purpose it may establish anywhere in Pakistan safe houses and high security prisons with courtrooms.

The counsel feared that the safe houses may be misused leading to the proliferation of missing persons.

Contrary to the settled principles of law where an accused is presumed innocent and it is the duty of the prosecution to bring evidence against him, the ordinance treats an accused person as an enemy until he brings proofs of his innocence.

The counsel pointed out that through the ordinance the powers of high courts had been taken away.

Under the current practice, a high court is the appellate forum of special courts.

The decision of the proposed special courts can only be challenged in the Supreme Court.

Advocate Khan said the ordinance was an open interference in the jurisdiction of high courts and it should be struck down in the interest of justice.

He requested the court that as the matter was of public importance, a larger bench may be constituted for its hearing.

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